BILL ANALYSIS Ó
AB 2586
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2586 (Bloom)
As Amended June 16, 2014
Majority vote
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|ASSEMBLY: |77-0 |(May 15, 2014) |SENATE: |32-0 |(June 26, |
| | | | | |2014) |
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Original Committee Reference: JUD.
SUMMARY : Re-opens discovery when a post-judgment motion is
filed in a family law proceeding. Specifically, this bill
provides that, in a family law proceeding, when a request for
order or other motion is filed and served after entry of a
judgment, discovery automatically reopens as to the issues
raised in the postjudgment pleadings currently before the court.
Provides that, for purposes of determining when the discovery
period ends and when discovery motions must be heard, the trial
date means the date the post-judgment proceeding is set to be
heard on the motion or any continuance thereof, or the date of
the evidentiary trial, whichever is later.
The Senate amendments add that the relevant date to end
discovery can be extended if the post-judgment motion is
continued and make other technical changes.
EXISTING LAW :
1)Unless otherwise provided, applies the rules of practice and
procedure generally applicable to civil actions, including
specified provisions of the Code of Civil Procedure, to
proceedings under the Family Code.
2)Provides a simplified and inexpensive discovery method prior
to commencement of a proceeding to modify or terminate an
order for child, family, or spousal support. In particular,
allows, up to once every year, either party to a support order
to request a completed Income and Expense Declaration from the
other party even in the absence of a pending motion.
3)Except as otherwise provided, entitles any party, as a matter
of right, to complete discovery proceedings on or before the
30th day before the date initially set for the trial and to
AB 2586
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have motions concerning discovery heard on or before the 15th
day before the date initially set for the trial.
4)Allows the court, on the motion of any party, to grant leave
to complete discovery proceedings, or to have a motion
concerning discovery heard, closer to the initial trial date,
or to reopen the discovery date after a new trial date has
been set. Requires that such motion be accompanied by a meet
and confer declaration, as provided.
FISCAL EFFECT : None
COMMENTS : Unlike other areas of the law, family law cases go on
for years even after a judgment is issued. Custody and support
orders, which can last for years, may require multiple
modifications, based on changing incomes and changing
circumstances. Missed assets may be discovered after issuance
of a judgment dividing property. Each of these issues may
require discovery. Until recently, family law practitioners
regularly conducted post-judgment discovery, after a new motion
was filed, without prior approval of the court. However, a
recent appellate court decision held there is no automatic right
to discovery and required parties to seek court approval prior
to discovery. This bill seeks to abrogate that decision and
instead permit parties to conduct automatic discovery for
post-judgment motions, without the need for prior court
approval.
The Third Appellate District recently found that there was no
right to automatically re-open discovery when a post-judgment
motion is filed in a family law proceeding. (In re Marriage of
Boblitt (2014) 223 Cal.App.4th 1004.) In that case, a wife
objected to the court adding issues to the post-judgment
evidentiary hearing on property issues less than 30 days before
the hearing, effectively foreclosing her ability to do discovery
of those additional issues. In upholding the trial court's
ruling against her, the appellate court found that once
discovery closes on the original trial date, discovery will only
reopen upon a motion for leave of court or agreement of the
other party. The appellate court acknowledged that existing law
is not particularly clear and that the court's ruling was based
on construing the statute, and suggested that the Legislature or
the Judicial Council might want to clarify the law:
It might behoove the Legislature, or the Judicial
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Council, to specifically address the application of
the Civil Discovery Act to postjudgment family law
proceedings. (See Family Code Section 211
["Notwithstanding any other provision of law, the
Judicial Council may provide by rule for the practice
and procedure in proceedings under this code."].) In
the absence of specific guidance, however, we are left
to construe what law there is, and we construe the
existing law to require a motion to reopen discovery
in a marital dissolution proceeding when discovery is
desired regarding a matter raised by a postjudgment
motion. Of course, the parties can always agree
between themselves to permit postjudgment discovery
even without a court order.
(Id. at 10024, footnote 10.)
This bill takes up the court's suggestion to specifically
address discovery rules in post-judgment family law proceedings.
Specifically, this bill provides that parties to post-judgment
motions in family law proceedings may automatically conduct
discovery on any issue raised in the new pleadings, without the
need for prior court approval.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0004012